SCOTUS Watch: The Court Opted For Narrowly Decided Opinions In Major Cases

The U.S. Supreme Court began the week last Monday with a couple of technical criminal sentencing cases.

Greer v. United States is a case about what kind of argument the defendant needs to make in cases alleging that he is a felon in possession of a gun after the Court’s ruling in Rehaif v. United States, in which the Court held that the government must prove not only that the defendant knew he had a gun but also that he knew he was a felon.

Justice Kavanaugh wrote the opinion, joined by all the other Justices, except Justice Sotomayor, who wrote an opinion concurring in part, and dissenting in part.

The Court held that in felon-in-possession cases, a Rehaif error is not a basis for plain-error relief unless the defendant first makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.

Greer v. United States was consolidated with United States v. Gary (No. 20-444).

Justice Sotomayor, concurred as to Greer, and concurred in part, dissented in part, and dissented from the judgment as to Gary.

Terry v. United States was a case that was originally scheduled for argument in March, but then the court pushed it back to May after the Biden administration switched positions, leading the justices to appoint an amicus (“friend of the court”) to  — ultimately successfully — defend the judgment below.

Justice Clarence Thomas wrote the opinion, joined by all the other Justices, except Justice Sotomayor, who wrote an opinion concurring in part, and concurring in the judgment.

The question before the court was whether a group of low-level crack cocaine offenders who did not trigger a mandatory minimum qualify for the opportunity for a reduction under the First Step Act of 2018. The court held that they do not.

The court-appointed amicus attorney was Adam Mortara (who previously clerked for Justice Thomas), who won a unanimous decision.

Thursday was the first “big decision day” for the Court in June.

It began with the long overdue and “easy” case to decide, argued a week after Election Day last year, which made everyone nervous as to “why the long delay?” The “Obamacare” case, California v. Texas, was ultimately decided on a legal technicality, i.e., the plaintiffs lack standing to bring the lawsuit. Which makes the lower courts that advanced this politically motivated case look all the worse for their ridiculous rulings.

I previously posted about this case in SCOTUS Rejects Republican Challenge To The ACA – ‘Obamacare’ Lives!

The next case was Nestle v. Doe, a case brought under The Alien Tort Statute, which allows foreigners to bring lawsuits in U.S. courts for serious violations of international law, in this case by former child slaves in Ivory Coast.

Supreme Court reporter Robert Barnes explains, Supreme Court says chocolate companies cannot be sued over child slavery on African cocoa farms:

Six African men were seeking damages from Nestlé USA and Cargill, alleging that as children they were trafficked out of Mali, forced to work long hours on Ivorian cocoa farms and kept at night in locked shacks.

Their attorneys argue the companies should have better monitored their cocoa suppliers in West Africa, where about two-thirds of the world’s cocoa is grown and child labor is widespread.

At issue was whether the Malians have the right to sue the companies in U.S. courts and, more broadly, under what circumstances foreigners may sue U.S. firms for wrongs committed in their supply chains overseas.

The Supreme Court on Thursday said U.S. chocolate companies cannot be sued for child slavery on the African farms from which they buy most of their cocoa.

But the court stopped short of saying such a lawsuit could never go forward.

The court’s splintered decision was written by Justice Clarence Thomas. Justice Samuel A. Alito Jr. dissented from the decision, saying it was premature to dismiss the suit.

Attorneys for the Malians argued that the mistreatment of the Malians stems from decisions by company officials in the United States — and therefore, U.S. courts should handle the matter. While Nestlé and other chocolate companies do not generally own the farms from which they obtain cocoa, the firms often provide training and other support to them.

“We believe they controlled the system of child forced labor in the Ivory Coast from the United States,” said Paul Hoffman, an attorney for the Malians.

In its decision Thursday, the Supreme Court sided with the companies on that critical issue.

The Roberts Court nearly always sides with corporations. The next time you have a craving for chocolate, think about these former child slaves and how that chocolate is produced.

The next case was Fulton v. Philadelphia, a case in which a city agency refused to make referrals to Catholic Social Services (CSS) because CSS did not certify same-sex couples as foster-care parents. The city said that the CSS practice violated a provision of its standard foster care contract.

Chief Justice John Roberts wrote the majority opinion, joined by Justices Breyer, Sotomayor, Kagan, Kavanaugh and Barrett. Justice Barrett also has a concurrence, joined by Justice Kavanaugh and (mostly) by Breyer; Justice Alito concurred in the judgment, joined by Thomas and Gorsuch. Gorsuch also has an opinion concurring in the judgment, joined by Thomas and Alito. So Fulton is unanimous: all nine Justices hold this was a First Amendment violation.

Court observers believed that the recent “religious liberty” cases of the Court over COVID-19 public health safety guidelines were a precursor to a retrenchment by the Court on LGBTQ rights, after the Court had upheld same-sex marriage and expanded Title VII anti-discrimination laws in the workplace to the LGBTQ community.

The Court punted on the central question — whether a state or local SOGI anti-discrimination law violates the First Amendment — by finding CSS is not a public accommodation, and instead treated this as a contracts case in a narrowly tailored ruling.

Supreme Court reporter Ian Millhiser explains, An epic Supreme Court showdown over religion and LGBTQ rights ends in a whimper:

Fulton v. City of Philadelphia, a case involving a Catholic group that objects to placing foster children with same-sex couples, was widely expected to be a sweeping victory for the religious right, and a correspondingly significant defeat for LGBTQ rights. Instead, the Court’s opinion dodges nearly all of the important issues raised by the case.

It’s still a small win for religious conservatives and a similarly small loss for the LGBTQ community in Philadelphia. But the Court’s decision is unlikely to have many implications outside of that city. And it hits pause on a fight to overrule a landmark Supreme Court decision from over three decades ago — most likely because, as Justice Amy Coney Barrett notes in a concurring opinion, several of the justices aren’t sure what to do next if that decision is overruled.

[T]he plaintiffs in Fulton asked the Supreme Court to overrule its seminal decision in Employment Division v. Smith (1990), which held that religious objectors must follow “neutral law[s] of general applicability.” Under Smith, a religious objector typically is bound by a state or local law so long as it applies with equal force to non-religious actors — so, if secular organizations are forbidden from discriminating, the same rule will generally apply to religious organizations.

But neither of these important questions was resolved in Fulton. While Justice Samuel Alito penned a lengthy opinion calling for Smith to be overruled, that opinion was joined by only Justices Clarence Thomas and Neil Gorsuch.

CNN adds, Justice Samuel Alito swung for the fences on religious liberty and came up short, but isn’t done yet: “Justice Samuel Alito began this Supreme Court term with a public call to arms for greater protections for the free exercise of religion, but on Thursday could only express deep frustration that there wasn’t a solid majority ready to follow his lead to issue a landmark opinion.” Alito’s opinion is simply unhinged. People ought to be concerned about the mental health of this Justice.

The remainder of the Court joined a much narrower majority opinion by Chief Justice John Roberts, which rules in favor of CSS, but on grounds that are unlikely to have many implications for future cases.

[T]hough Smith held that religious objectors generally must follow the same rules as everyone else, Smith also held that “where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of ‘religious hardship’ without compelling reason.” Thus, because the foster care contract permits a city official to grant exceptions to the ban on discrimination, CSS has heightened constitutional protection that it would not have if the contract simply banned discrimination outright.

The point, once again, is that CSS prevails largely due to the specific wording of a document that only applies in the city of Philadelphia. The Court’s decision in Fulton has nothing to say about a city that simply forbids discrimination on the basis of sexual orientation without providing for exemptions.

The narrowness of Fulton is surprising

One reason many Supreme Court watchers, including myself, thought the Court was likely to hand down a much more sweeping ruling in Fulton is that the Court spend the past several months handing very significant victories to the religious right.

Although Smith is technically still good law, the Court’s recent decisions in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) and Tandon v. Newsom (2021) both drastically undercut the decision in Smith. In both Roman Catholic Diocese and Tandon, the Court ruled in favor of places of worship that sought exemptions from public health orders seeking to prevent the spread of Covid-19.

[G]iven this significant new limits on the Smith decision, it seemed likely that the Court would limit it even more — or potentially even overrule Smith — in Fulton. And yet the Court stayed its hand.

The most likely explanation for the Court’s restraint comes from Justice Barrett’s concurring opinion in Fulton. Though Barrett claims in that opinion that “the textual and structural arguments against Smith” are “compelling,” she confesses she is uncertain “what should replace Smith.”

“There would be a number of issues to work through if Smith were overruled,” Barrett writes, including “Should entities like Catholic Social Services—which is an arm of the Catholic Church—be treated differently than individuals?” and whether “pre-Smith cases rejecting free exercise challenges to garden-variety laws come out the same way.”

Barrett’s opinion was joined in full by Justice Brett Kavanaugh, and in part by Justice Stephen Breyer, so it appears that these three justices may hold the future of Smith in their hands. Until at least two of them are certain how to proceed in a post-Smith world, the Court appears to be in a holding pattern regarding how to handle religious liberty cases.

That holding pattern is unlikely to remain in place forever.

David Von Drehle at The Washington Post adds:

Beneath the unanimity, however, lay a splintered court, with a number of justices saying the bomb must finally detonate. Either religious freedom protects those who treat same-sex couples unequally in public life, or it doesn’t.

Justice Neil M. Gorsuch, in a concurring opinion, counted the cost of dodging this uncomfortable question: “Individuals and groups across the country will pay the price” of endless litigation over the unsettled question, “in dollars, in time, and in continued uncertainty about their religious liberties.”

Religious liberty or freedom from discrimination: Advocates on both sides insist the question is simple. In fact, it is very difficult. Two bedrock principles of the Constitution are brought into direct conflict. Americans have a right in their public lives to be free from discrimination based on who they are. This right finds expression in laws requiring businesses and agencies that serve the public to do so without discrimination.

Americans also have a protected freedom of belief and expression. They cannot be compelled by the government to express or reject any religious views or political opinions.

The “religious liberty” cottage industry on the right has been grifting off this for years. It has distorted the First Amendment beyond any recognition in pursuit of a “get out of jail free” card in which religious extremists can assert that anti-discrimination laws do not apply to them if the law does not comport with their own “deeply held personal religious beliefs.” They are trying to create a “special class” of citizens to whom anti-discrimination laws do not apply. They really want to opt out of a secular society in which the rule of law applies, and live in their own isolated bubble.

What is so hypocritical about this is that many of them are Christian Nationalists and Dominionists who dream of the day that they can impose their own peculiar religious beliefs on everyone else through force by seizing the power of government. They made up a good proportion of the MAGA/QAnon insurrectionists on January 6.

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There are still 15 cases yet to be decided. The Court has scheduled Monday, Wednesday and Friday of this week as opinion days, so it is going to be an eventful week. You can follow the release of opinions at SCOTUSblog.com’s live blog of opinions. The Court typically releases opinions beginning at 10:00 a.m. ET (7:00 a.m. Arizona time).